The Conservative Road to Serfdom?

George Will argues that American politics is divided between conservatives, “who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom” and progressives “whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected.” For Will, real conservatives favor an activist judiciary that will aggressively defend our “capacious, indeed indefinite realm of freedom” from the majority.

The distinction here, as the late Carey McWilliams explained, is between those who regard democracy as a means, and those who regard it as an end. Yet McWilliams tells a very different story about this distinction. America, from the beginning, has been a kind of dialectical tension between the democratic and libertarian “voices.” The dominant voice, which we hear in The Federalist, is about securing the conditions of liberty for the free and self-interested individual. The second voice, which originates with our Puritans, is about participatory, egalitarian idealism rooted in the Christian insight about the dignified equality of all creatures.

We see Lincoln (who is only a “progressive” to hyper-libertarians), McWilliams reminds us, as correcting an excess of the dominant voice of our Founding in the Gettysburg Address: “the Declaration of Independence asserts that we are created equal and that government exists to secure rights; Lincoln argued that the Union, conceived in liberty, is dedicated to equality.”

The democratic citizen, McWilliams goes on, “measures contribution by the quality of human devotion.” And the effort to abolish slavery and end segregation in our country depended not only on Lockean calculation of rights but on what can only be called religious devotion. Jefferson spoke eloquently against the violence slavery did to natural rights, but he wasn’t inspired to do much about it. He certainly didn’t think much of the neo-Puritanical Abolitionists who refused to compromise when it comes to personal freedom. Lincoln thought highly of Jefferson’s principles but not of his indifference to taking even modest risks on behalf of justice. In the same way, Martin Luther King Jr.who mixed perfectly Christian and individualistic themesdidn’t think much of the “white moderate” who knew what was right but lacked the idealism to act now.

So America, at its best, is about people who somehow see democratic citizenship as both a means and an end and so avoids the extremes of endlessly meddlesome democratic tyranny and apolitical libertarian indifference to the souls of their fellow citizens and creatures. That balance can be seen even in the Declaration of Independence, where the residually Puritanical (or Calvinist) members of Congress amended Jefferson’s draft. Jefferson’s spoke of “Nature’s God” in the mode of the Deists, of a Creator who is indifferent to our personal existences. Amended, our Declaration speaks of a judgmental and providential God, a personal and relational God, a God who cares about each of us as we should care about each other.

Jefferson viewed the changes as a mangling of his original intention but accepted them in the spirit of accommodating statesmanship. The Declaration, as a compromise, is better than the original theory of either of the parties. A purely Puritanical Declaration would have affirmed theocratic trampling on the rights of conscience, a purely Deistic or Lockean Declaration would have alienated Christian Americans.

Will seems to be animated by what can only be called the progressivist libertarian faith that the realm of freedom actually expands over time. Remember Justice Kennedy’s astonishing words in Lawrence v. Texas about the word liberty in our Constitution, the words which will serve to justify the emerging right to same-sex marriage and even the deconstruction of civil marriage itself as an oppressive constraint on the individual:

Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see laws once thought necessary and proper in fact only serve to oppress. As the Constitution endures, persons in every generation can invoke its principles in the search for greater freedom.

Liberty means the indefinite realm of freedom that grows over time. And it’s the Court that determines what “greater freedom” means for any particular generation. Well, nothing can be more anti-democratic than that! There are no enduring limits to the ways liberty can be invoked to clamp down on majorities. Democracy withers away as even a means to secure liberty. The people have less and less authority to shape and confine liberty by protecting indispensable relational institutions that make freedom more than a word for nothing left to lose.

Progressivism hasn’t really been about democracy, but the supplanting of relational institutions and traditions with the schoolmarmish discipline of enlightened experts. And Tocqueville explains that the emptying out of the real contents of life through excessive individualism makes people easy prey for such despotism. The emptiness facilitated by Will’s basically apolitical brand of libertarian judicial activism is what pushes us most forcefully down the road to serfdom.

Peter Augustine Lawler is Dana Professor of Government at Berry College in Georgia. His previous articles can be found here.

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